Suit Over Lies to Grand Jury Heads to High Court

(CN) – The Supreme Court on Monday agreed to review a finding that prosecutors are entitled to immunity if they have presented perjured testimony to a grand jury.

In a closely watched case last year, the 11th Circuit granted immunity to Georgia prosecutors who were the subject of a civil rights suit by Charles Rehberg. Rehberg had sent anonymous, critical faxes to management at the Phoebe Putney Memorial Hospital. Dougherty County District Attorney Kenneth Hodges III and his chief investigator, James Paulk, looked into the faxes as a “favor” to the allegedly well-connected hospital, according to court filings. Bell South, Alltel and Sprint complied with the prosecutors’ subpoenas and identified Rehberg as the fax sender. The prosecutors indicted Rehberg three times over the next six months, and the case attracted a lot of press attention as each indictment fell through for lack of evidence. Amid “unfavorable press coverage” about the DA’s political relationship with the hospital, Hodges had recused himself from the case and Kelly Burke was appointed as special prosecutor. Rehberg sued the three officials under the First, Fourth and 14th Amendments, alleging malicious prosecution, retaliatory investigation and fabrication of evidence. A Georgia federal judge declined the defendants’ motion for immunity, but the 11th Circuit said they were entitled to dismiss most of Rehberg’s claims. The 40-page decision states that the chief investigator cannot be liable for allegedly lying to the grand jury, even if he and the district attorney knew that his testimony was false. On the conspiracy charges, the court held that the Hodges and Paulk likewise had immunity from the charge that they conspired to fabricate and present false evidence to the grand jury. Burke was found to have immunity for the same reasons against a separate claim. Since the prosecutors stepped out of the role of advocate to perform the actual investigation of Rehberg, the court found that they could not claim absolute immunity. The judges granted them qualified immunity nonetheless as to the subpoenas because Rehberg waived his right to privacy by voluntarily sending the information to his Internet Service Providers. The judges upheld the retaliatory prosecution claim under the First Amendment, but they granted the officials immunity from the charge of retaliatory investigation. According to the decision, the Supreme Court has never defined retaliatory investigation, standing alone, as a constitutional tort. In taking up the case on Monday, the Supreme Court said that the Government Accountability Project can file a brief as amicus curiae.